Section 6-B1149. BACK PAY

 

1149.1In this section, the following terms have the meaning ascribed:

 

Appropriate authority - an entity having authority to correct or direct the correction of an unjustified or unwarranted personnel action, including but not limited to the following:

 

(a)A court having jurisdiction;

 

(b)The Office of the Corporation Counsel;

 

(c)The head of the employing agency or an agency official to whom corrective action authority is delegated;

 

(d)The pay authority;

 

(e)The Office of Employee Appeals;

 

(f)The Public Employee Relations Board;

 

(g)The Office of Human Rights;

 

(h)The Equal Employment Opportunity Commission;

 

(i)An arbitrator in a binding arbitration case; and

 

(j)Any other federal agency authorized to order remedial actions under any program providing federal financial assistance.

 

Benefits - monetary and employment benefits to which an employee is entitled by law or regulation, including but not limited to health and life insurance, and excluding pay as defined in this section.

 

Nondiscretionary provision - any provision of law, Mayor’s Order, regulation, personnel policy issued by the pay authority, or collective bargaining agreement that requires a personnel authority to take a prescribed action under stated conditions or criteria.

 

Pay - the rate of basic pay or basic compensation as defined under the applicable pay system; pay increases; within-grade increases; premium pay (including holiday, Sunday, night, administrative closing, and local environment pay); on-call pay; retained rates; and pay adjustments for District Service supervisors. For the purpose of this section, pay also means annual, sick, court, and military leave.

 

Unjustified or unwarranted personnel action - an act of commission (that is, an action taken under authority granted to an authorized official) or of omission (that is, non-exercise of proper authority by an authorized official) that is subsequently determined to have violated or improperly applied the requirements of a nondiscretionary provision, as defined herein, and thereby resulted in the withdrawal, reduction, or denial of all or any part of the pay or benefits, as used herein, otherwise due an employee. The words “personnel action” include personnel actions and pay actions, alone or in combination.

 

1149.2An employee who, on the basis of a timely appeal of an administrative determination is found, by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have undergone an unjustified or unwarranted personnel action resulting in the withdrawal or reduction of all or part of an employee’s pay or benefits, shall be entitled, on correction of the personnel action, to back pay under this section.

 

1149.3This section applies to the computation, payment, and restoration of pay and benefits for the purpose of making an employee financially whole, when the employee, on the basis of an administrative determination, a timely appeal, grievance, or claim against the District government, is found to have undergone an unjustified or unwarranted personnel action.

 

1149.4An unjustified or unwarranted personnel action shall only be corrected if it is found by appropriate authority that the withdrawal, reduction, or denial of all or part of the pay or benefits due an employee was the clear and direct result of and would not have occurred but for the unjustified or unwarranted personnel action.

 

1149.5The requirement for an administrative determination shall be met when an appropriate authority finds that an agency has taken a personnel action it was prohibited from taking, has taken a personnel action not authorized by law or regulation, or has not taken a personnel action it was required to take.

 

1149.6The requirement for a timely appeal shall be met when an employee or personal representative initiates a claim for settlement of the employee’s claim against the District government in accordance with the procedures included in a collective bargaining agreement, or in other procedures established by an appropriate authority, and the claim is accepted as timely filed by the personnel authority administering the appeal or grievance system, or is found to be timely by the appropriate authority.

 

1149.7A personnel action, to be unjustified or unwarranted, must be determined by an appropriate authority to be improper or erroneous on the basis of substantive defects, and no employee shall be entitled to back pay or reinstatement solely on the basis of procedural error by the agency.

 

1149.8The requirement for correction of the personnel action shall be met when appropriate authority, consistent with law, Mayor’s Order, regulation, or collective bargaining agreement, after a review, makes or directs the correction of an unjustified or unwarranted personnel action.

 

1149.9Subject to the provisions of §§ 1149.11 and 1149.12, the period for which recomputation is required under § 1149.10 shall be the period covered by the unjustified or unwarranted personnel action that is corrected.

 

1149.10When an appropriate authority corrects or directs the correction of an unjustified or unwarranted personnel action, the agency shall determine the employee’s back pay entitlement by recomputing for the period covered by the corrective action the pay and benefits of the employee as if the unjustified or unwarranted personnel action had not occurred, but in no case shall the employee be granted more pay or benefits than he or she would have been entitled by law, Mayor’s Order, regulation, or agency policy.

 

1149.11In computing the amount of back pay under this section, the agency shall not include any of the following:

 

(a)Any period during which the employee was not ready and able to perform his or her job because of an incapacitating illness, except that the agency shall grant, upon the request of and documentation by the employee, any sick leave or annual leave to his or her credit to cover the period of incapacity by reason of illness;

 

(b)Any period during which the employee was unavailable for the performance of his or her job; or

 

(c)Any period after one (1) year from the date of the unjustified or unwarranted personnel action where it is determined that an employee has not actively sought employment.

 

1149.12In computing the amount of back pay due an employee, the agency shall deduct both of the following:

 

(a)Any amounts earned by the employee from other employment during the period covered by the personnel action being corrected; and

 

(b)Any erroneous payment received from the District or Federal Government as a result of the unjustified or unwarranted personnel action, which, in the case of erroneous payments received from the federal Civil Service Retirement System, Police and Fire Retirement System, and any District retirement system, shall be returned to the appropriate system.

 

1149.13The agency shall include as other employment under § 1149.12(a) only that employment engaged in by the employee to take the place of the employment from which the employee was separated.

 

1149.14An employee entitled to back pay under this section shall have included in the back pay computation any pay or benefit that the employee would have received, except that overtime pay shall not be included in the back pay award.

 

1149.15Back pay awarded under this section shall be subject to any withholdings, allotments (as defined in § 1146), and deductions as required by law or regulation.

 

1149.16Any indebtedness remaining after liquidation of back pay may be subject to waiver by either of the following:

 

(a)The Mayor, for the employee’s indebtedness to the District government, pursuant to Chapter 29 of these regulations; or

 

(b)The U.S. Office of Personnel Management, for the employee’s indebtedness to the Civil Service Retirement System.

 

source

Final Rulemaking published at 52 DCR 934 (February 4, 2005).